Citation NR: 9621225
Decision Date: 07/29/96 Archive Date: 08/06/96
DOCKET NO. 94-29 006 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Muskogee,
Oklahoma
THE ISSUE
Entitlement to service connection for tinnitus.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
Kristi Barlow, Associate Counsel
INTRODUCTION
This matter comes before the Board of Veterans’ Appeals (BVA
or Board) on appeal from a December 1993 decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
Muskogee, Oklahoma, which, inter alia, denied service
connection for tinnitus. The veteran, who had active service
from October 1967 to June 1969, appealed that decision to the
Board.
The Board notes that the issue of service connection for
flexion contractures was also certified for appeal; however,
the veteran only addressed the issue of service connection
for tinnitus in his VA Form 9 which was filed in May 1994,
and his representative stated in its VA Form 1-646 filed in
February 1996 that the only issue on appeal was that of
service connection for tinnitus. Therefore, the Board will
not address the issue of service connection for flexion
contractures.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran asserts on appeal that the RO erred in denying
service connection for tinnitus. He contends, essentially,
that he experienced acoustic trauma while in the service and
now suffers from persistent tinnitus as a result of that
trauma. Therefore, a favorable determination is requested.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1995), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that the veteran has failed to
submit evidence of a well grounded claim for service
connection for tinnitus.
FINDINGS OF FACT
1. There is no evidence of an acoustic trauma during
service; however, one may be inferred based on the veteran’s
military specialty as a combat engineer during his Vietnam
service.
2. There is no medical evidence linking the veteran’s
current tinnitus to his military service.
CONCLUSION OF LAW
Evidence of a well grounded claim for service connection for
tinnitus has not been submitted. 38 U.S.C.A. §§ 1110, 5107
(West 1991); 38 C.F.R. §§ 3.102, 3.303 (1995).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The preliminary question to be answered regarding the
veteran’s claim for service connection for tinnitus is
whether he has presented a well grounded claim. In this
regard, the veteran has “the burden of submitting evidence
sufficient to justify a belief by a fair and impartial
individual that the claim is well grounded.” 38 U.S.C.A.
§ 5107(a) (West 1991); Murphy v. Derwinski, 1 Vet. App. 78,
81 (1990). If the veteran has not presented a well grounded
claim, his appeal must fail. See Boeck v. Brown, 6 Vet. App.
14, 17 (1993); Grivois v. Brown, 6 Vet. App. 136, 140 (1994).
In order to be well grounded, there must be competent
evidence of current disability (a medical diagnosis), see
Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau
v. Derwinski, 2 Vet. App. 141, 144 (1992); of incurrence or
aggravation of a disease or injury in service (lay or medical
evidence), see Layno v. Brown, 6 Vet. App. 465, 469 (1994);
Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991); and of a
nexus between the inservice injury or disease and the current
disability (medical evidence), see Lathan v. Brown, 7 Vet.
App. 359, 365 (1995); Grottveit v. Brown, 5 Vet. App. 91, 93
(1993).
The veteran served in the Army in Vietnam as a combat
engineer; his principal duties while serving in Vietnam were
those of a pioneer, a combat construction specialist, and as
an assistant squad leader. He contends that he experienced
significant acoustic trauma while in the service as he was
exposed to demolition work on a regular basis. Although
there is no evidence of acoustic trauma in the veteran’s
service medical records, the Board will infer such a trauma
based on the facts contained in the veteran’s military
personnel records that he was a combat engineer with duties
of a combat construction specialist.
The veteran underwent a VA audiological examination in July
1993. He related that he had a significant history of
military noise exposure and acoustic trauma as a result of
having been in demolition work during service. He complained
of constant tinnitus which had been present for the previous
eight to ten years. The examiner diagnosed severe tinnitus
because the disorder was noted to have a disruptive effect on
the veteran’s daily life, including sleep disturbance. The
examiner, however, did not opine as to the likelihood of the
veteran’s tinnitus being caused by acoustic trauma
experienced during his service, approximately fifteen years
prior to the onset of the disorder.
The veteran has not submitted evidence regarding any post-
service noise exposure. He has not submitted any treatment
records to reflect complaints of or treatment for tinnitus,
nor has he submitted a medical opinion linking his tinnitus
to his military service.
As stated above, presuming the truthfulness of evidence for
the purpose of determining whether the claim is well
grounded, as required by Robinette v. Brown, 8 Vet. App. 69,
75-76 (1995), and King v. Brown, 5 Vet. App. 19, 21 (1993),
the Board will infer from the evidence that the veteran was a
combat engineer that an acoustic trauma was experienced
during service. There is, however, no competent medical
evidence of a nexus between the veteran’s service and his
currently diagnosed tinnitus. The veteran’s statements on
his behalf, standing on their own, are not sufficient to
establish a relationship between his current disability and
his military service. Espiritu v. Derwinski, 2 Vet. App.
492, 495 (1992) (Laypersons are not competent to offer
medical opinions). Therefore, it is the judgment of the
Board that the veteran has failed to meet his initial burden
of submitting evidence of a well grounded claim for
entitlement to service connection for tinnitus. If a claim
is not well grounded, there is no duty to assist the veteran
in the development of the claim and the claim must fail. See
Slater v. Brown, -- Vet.App.--, No. 94-713 (U.S. Court of
Vet. Appeals, July 11, 1996).
In reaching this determination, the Board recognizes that
this issue is being disposed of in a manner that differs from
that used by the RO. The Board has, therefore, considered
whether the veteran has been given adequate notice to
respond, and if not, whether he has been prejudiced thereby.
Bernard v. Brown, 4 Vet. App. 384, 394 (1993). In light of
his failure to meet his obligation in the adjudication
process by not submitting adequate evidence and because the
difference between evidence required to render the claim well
grounded and that required to reopen a previously disallowed
claim appears to be slight, see Edenfield v. Brown, 8
Vet.App. 384 (1995)(en banc), the Board concludes that the
veteran has not been prejudiced by this approach.
The Board views its discussion as sufficient to inform the
veteran of the elements necessary to complete his application
for a claim for service connection for the claimed
disability. See Robinette v. Brown, 8 Vet. App. 69, 77-78
(1995).
ORDER
Evidence of a well grounded claim having not been submitted,
service connection for tinnitus is denied.
WARREN W. RICE, JR.
Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, 741
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1995), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
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